The Owner’s Purpose for Holding an Event must be Evaluated when Applying the Recreational Property A

In July 2014, Sally Stofer and Carol Denton were attending a free concert in Macon, Georgia. The property/venue was owned by Macon-Bibb County, but Mercer University (“Mercer”) was granted a permit to use the park. Mercer did not have to pay for the permit; however, it had to pay for security and liability insurance. During the concert, there were vendors at the park selling food and drinks. While leaving the venue, Stofer lost her balance in a stairwell that had no handrail. She hit her head as she landed and fell into a coma. She was eventually removed from life support. Stofer's children and her estate filed a wrongful death action based on claims of negligence and premises liability. Mercer Univ. v. Stofer, 2018 WL 1248698 (Ga. Ct. App. 2018).

Mercer moved for summary judgment on the basis that it was immune from liability under the Recreational Property Act (the “RPA”). The purpose of the RPA is to encourage owners of land to make the land and water areas available to the public for recreational purposes by limiting the owners' liability to persons entering thereon for recreational purposes. O.C.G.A. § 51-3-20. Specifically, an owner of land owes no duty of care to keep the premises safe for entry or use by others for recreational purposes or to give any warning of a dangerous condition, use, structure, or activity on the premises to persons entering for recreational purposes. O.C.G.A. § 51-3-22. However, the trial court denied Mercer's motion as to immunity under the RPA and Mercer filed an interlocutory appeal.

It is undisputed that Stofer was not charged to attend the concert; however, the issue presented to the Georgia Court of Appeals was whether the RPA applied when both recreational and commercial use of the land existed at the time of injury. Specifically, the Stofer claim that the concert was commercial because private vendors sold food and alcohol at a profit and Mercer derived revenue from corporate sponsorships. In cases where the purposes are a mix of recreational and commercial, “an owner's profit motive does not necessarily create a reasonable inference that the event is commercial rather than recreational in nature. Rather, it is the purpose for which the owner earned the profits.” Anderson v. Atlanta Committee for the Olympic Games, Inc., 273 Ga. 113, 537 S.E.2d 345 (2000). Therefore, the Court held that Mercer's purpose must be considered, and resolved by a jury because the issue of whether the property's use was purely recreational was disputed. Therefore, the court affirmed the denial of Mercer’s motion and the Georgia Supreme Court has not granted certiorari.

It is clear the Court wanted to strictly construe this immunity. Absolute bars to liability deserve absolute attention to detail through consultation with counsel prior to holding events.